2008 Major Municipal Court and Criminal

By Kenneth Vercammen, Esq.

1. Statement by eye witness not admissible as emergency investigation. State in the Interest of J.A. 195 NJ 324 (2008).

The hearsay statements were a narrative of past events and made while neither the declarant nor victim was in imminent danger. The statements were testimonial and, because the declarant was not produced as a witness or subject to cross-examination, the admissions of the statements violated J.A.’s Sixth Amendment right to confront the witnesses against him.

2. Statement to DYFS worker under emergency is admissible. State v. Buda 195 NJ 278 (2008)

The trial court did not abuse its discretion in determining that the child’s statements to his mother and the DYFS worker were properly admitted into evidence as “excited utterances” under N.J.R.E. 803(c) (2). The Child’s statements were not testimonials and, hence, their admission at trial did not run afoul of the Confrontation Clause.

3. Crawford Hearsay Rule does not apply to Breathalyzer Certification. State v. Sweet 195 NJ 357 (2008)

The ampoule testing certificates and the breath testing instrument inspection certificates are hearsay statements admissible under the business records exception to the hearsay rule. Those records also are nontestimonial and thus are admissible under the Confrontation.

4 NJ Supreme Court holds new Alcotest DWI breath testing machine results admissible State v. Chun 194 NJ 54 (2008)The Supreme Court on March 17, 2008 adopted, as modified, the reports and recommendations of Special Master Judge King. This landmark decision changes the prosecution of DWI cases in New Jersey forever. Subject to certain conditions, the Court holds that the Alcotest is scientifically reliable and that its results are admissible in drunk driving prosecutions.

5. Post- conviction relief (PCR) Motion should be filed in the municipal court in which the prior uncounseled conviction occurred. State v. Schadewald 400 NJ Super. 350(2008)

A defendant convicted of a second or subsequent offense of driving

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while intoxicated (DWI), N.J.S.A. 39:4-50, who seeks a step-down in sentence on the ground that one or more of the prior convictions were uncounseled, pursuant to State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990), must first petition for post- conviction relief (PCR) in the municipal court in which the prior uncounseled conviction occurred. The PCR proceedings in municipal court are governed by Rule 7:10-2(f) and (g).

6. 5 Year Post Conviction Limit can be Relaxed in DWI. State v. Bringhurst 401 NJ Super. 421 (App. Div. 2008)

The court concluded that post-conviction relief (PCR) petitions brought pursuant to State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed.2d 413 (1990), must comply with Rule 7:10-2, and are subject to the five-year limit contained in Rule 7:10-2 (g)(2). However, those time limits may be relaxed to prevent an injustice. Because a Laurick PCR cannot be brought until there is a second or subsequent DWI conviction, the time bar should not mechanically be applied to deny the petition. However, to obtain the benefit of relaxation of the time limit, a defendant must put forth a prima facie case for relief in his petition itself. In this case, where defendant's prior, uncounseled conviction was allegedly rendered ten years earlier, he failed to put forth a prima facie case for relief Therefore, its denial was appropriate.

7. 30 year old uncounseled DWI Conviction could not enhance jail. State v. Binkiewicz (App. Div. Decided May 6, 2008) A5613-06T4, Unpublished. Where defendant’s first conviction for a DWI occurred more than 30 years ago, his testimony and certification that he did not know that he was entitled to counsel and was not asked if he wanted an adjournment to obtain counsel is sufficient under Laurick to establish that the conviction was uncounseled. Having found that the conviction was uncounseled, and since subsequent convictions exceeded the 10-year time span under N.J.S.A. 39:4-50(a)(3), the judge correctly applied the step-down provision and sentenced defendant as a second offender with respect to incarceration but as a third offender with respect to the administrative penalties after he pleaded guilty to his third DWI conviction. Source: 192 N.J.L.J. 412

8. Police cannot access defendant’s Internet records. State v. Reid 194 NJ 386 (2008)

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Pursuant to Article I, Paragraph 7, of the New Jersey Constitution, the Court holds that citizens have a reasonable expectation of privacy in the subscriber information they provide to Internet service providers. Accordingly, the motion to suppress by defendant Reid was properly granted because the police used a deficient municipal subpoena. Law enforcement officials can obtain subscriber information by serving a grand jury subpoena on an Internet service provider without notice to the subscriber. The State may seek to reacquire the information with a proper grand jury subpoena because records of the information existed independently of the faulty process used by the police, and the conduct of the police did not affect the information.

9. Police do not need a reasonable suspicion before they may access the NCIC database. State v. Sloane 193 NJ 423 (2008)

During a motor vehicle stop, the passenger, like the driver, is seized under the federal and state constitutions. Police do not need a reasonable suspicion before they may access the NCIC database and, because accessing the NCIC database was within the scope of the traffic stop and did not unreasonably prolong the stop, there was no basis to suppress the evidence found.

10. Noise ordinance not preempted by state law State v. Krause 399 NJ Super. 579 (App. Div. 2008)

Based on defendant's failure to meet his burden of proving facts that would establish that the Hackettstown noise ordinance was preempted by the Noise Control Act of 1971, N.J.S.A. 13:1G-1 to -23, the ordinance was held valid and the conviction affirmed. However, the opinion noted that local noise ordinances may require DEP approval to be enforceable at least with respect to certain facilities, such as commercial and industrial sites.

11. Commercial Vehicle could be searched during routine safety inspection State v. Hewitt 400 NJ Super. 376 (2008) A police officer who makes observations during a routine safety inspection of a commercial truck that reasonably lead him to believe it contains a hidden compartment containing contraband is not required to obtain a search warrant before undertaking to confirm

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the existence of the hidden compartment and determine its contents.

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